온라인서비스제공자의 책임제한과 특수한 유형의 온라인서비스제공자의 기술조치의무 - 서울고등법원의 소리바다5 결정을 중심으로 -

Abstract

The opinion on the Soribada 5, a P2P file sharing service, delivered by the Seoul High Court created a sensation. The Court held that the operator of the Soribada 5 service was liable for the copyright infringement on their networks and rejected it’s defense based on the second paragraph of Article 102, which prescribes that service providers can be immune from liability if they can’t prevent the copyright infringement on their networks. The reason for that ruling was that it is technologically possible for the provider to prevent the transmission of illegal files if it adopt the inclusion filtering technology. But the demand for adopting the inclusion filtering technology is the excessive regulation and will damage the value and innovation of the online service as a open platform. When it comes to the construction and application of the copyright law in the internet era, we should balance the interest of the right holders with the value of open platforms for the free communication. And if the service provider apply technological measures to prevent illegal transmission of illegal files on the request of the right holder according to the Article 104, we need to give the immunity from liability a serious consideration.